1 Blinn v. Chester, 5 Day, 359; Reed v. Bartlett, 19 Pick. 273. An agreement by a bank with a shareholder to take his stock at an agreed price for cash, or to allow him credit for it on any debt due from him to the bank, is not good as an accord and satisfaction. Clarke v. Hawkins, 5 R. I. 219 (1858). An agreement by the payee of a note to accept the labor of the maker, and not merely his promise to render it, is not good as an accord and satisfaction. Goodrich v. Stanley, 21 Conn. 613 (1856).
2 Howard v. Norton, 65 Barb. 161 (1873).
3 Com. Dig. Accord, B. 4; Allen v. Harris, Ld. Raym. 122; Lynn v. Bruce, 2 H. Bl. 317; Drake v. Mitchell, 3 East, 251; Collingbourne v. Mantell, 5 M. & W. 289; 7 Dowl. 518; Bayley v;. Homan, 5 Scott, 94, 103; 3 Scott, 384; 3 Bing. N. C. 915; Edwards v. Chapman, 1 M. & W. 231; Watkinson v. Inglesby, 5 Johns. 386; Coit v. Houston, 3 Johns. Cas. 243; Anderson v. Highland Turnpike, 16 Johns. 86.
4 See Simmons v. Clark, 56 I11. 96 (1870).
5 Com. Dig. Accord, B. 4; Cock v;. Honychurch, T. Raym. 203; 2 Keble, 690; Peytoe's Case, 9 Rep. 79 a; Brooklyn Bank v. De Grauw, 23 Wend. 312; Watkinson v. Inglesby, 5 Johns. 386; Frost v. Johnson, 8 Ohio, 393; Smith v. Keels, 15 Rich. 318 (1868); Noe v. Christie, 51 N. Y. 270(1873).
6 Spence v. Healey, 8 Exch. 668; 20 Eng. Law & Eq. 476; Snow v. Franklin, 1 Lutw. 358; Mayor of Berwick v. Oswald, 1 El. & B. 295; 16 Eng. Law & Eq. 236.
7 Com. Dig. Accord, B. 1-4.
8 Com. Dig. Accord, B. 4.
1 See ante, ch. xvi., Change of Parlies by Novation or Substitution, and cases cited. See, also, Babcock v. Hawkins, 23 Vt. 561; Lewis v. Lyster, 2 C, M. & R. 704; Kearslake v. Morgan, 5 T. R. 514; Sard v. Rhodes, 1 M. & W. 153; Good v. Cheesman, 2 B. & Ad. 328; Griffiths v. Owen, 13 M. & W. 63; Evans v. Powis, 1 Exch. 601; Holcomb v. Stimp-son, 8 Vt. 141.
2 Reeves v. Hearne, 1 M. & W. 323; Bayley v. Homan, 3 Bing. N. C. 920; Griffiths v. Owen, 13 M. & W. 63; Carter v. Wormald, 1 Exch. 81; Collingbourne v. Mantell, 5 M. & W. 289; Allies v. Probyn, 5 Tyrw. 1079; 2 C, M. & R. 408; Hams v. Reynolds, 7 Q. B. 71; Gifford v. Whittaker, 6 lb. 249; James v. David, 5 T. R. 141.
3 It might be otherwise if it were taken merely in collateral security of the debt. See Redfield & Bigelow's L. C. 204 et seq.
4 Peter v. Beverly, 10 Pet. 567; Wallace v. Agry, 4 Mason, 336; Sheehy v. Mandeville, 6 Cranch, 253; Burdick v. Green, 15 Johns. 247; Hughes v. Wheeler, 8 Cow. 77; Van Ostrand v. Reed, 1 Wend. 424; Bill v. Porter, 9 Conn. 23; Elliot v. Sleeper, 2 N. H. 525. See ante, § 1343, 1344, 1345; Weddigen v. Boston Elastic Fabric Co., 100 Mass. 422 (1868).
1 Babcock v. Hawkins, 23 Vt. 561. In this case there was an action on a book account, and it appeared that after the commencement of the suit, there was an agreement between the parties by which the defendant was to give a note for $30 to the plaintiff and pay the costs of the suit, except the writ and service. The note was accordingly executed, and a receipt given in these words: "Received of Peter Hawkins thirty dollars by note given per this date, in full to settle all book accounts up to this date." The defendant paid part of the note, but none of the costs as agreed, and for this reason the plaintiff refused to discontinue the suit. These facts being found by an auditor, judgment was rendered for the defendant, which was affirmed by the Supreme Court. Redfield, J., said: "We think it must be regarded as fully settled, that an agreement upon sufficient consideration, fully executed, so as to have operated in the minds of the parties as a full satisfaction and settlement of a pre-existing contract or account between the parties, is to be regarded as a valid settlement, whether the new contract be ever paid or not, and that the party is bound to sue upon the new contract, if such were the agreement of the parties. This is certainly the common understanding of the matter. It is reasonable, and we think it is in accordance with the strictest principles of technical law.
"1. There is no want of consideration in any such case, where one contract is substituted for another, and especially so where the amount due upon the former contract or account is matter of dispute. The liquidating a disputed claim is always a sufficient consideration for a new promise. Holcomb v. Stimpson, 8 Vt. 141.
"2. The accord is sufficiently executed when all is done which the party agrees to accept in satisfaction of the pre-existing obligation. This is ordinarily a matter of intention, and should be evidenced by some express agreement to that effect, or by some unequivocal act evidencing such a purpose. This may be done by surrender of the former securities, by release or receipt in full, or in any other mode. All that is requisite is that the debtor should have executed the new contract to that point whence it was to operate as satisfaction of the pre-existing liability in the present tense. That is shown, in the present case, by executing a receipt in full, the same as if the old contract had been upon note or bill, and the papers had been surrendered.
"3. In every case where one security or contract is agreed to be received in lieu of another, whether the substituted contract be of the same or a higher grade, the action, in case of failure to perform, must be even as a final statement of a debt of which the items were in dispute,1 the action must be brought on the promissory-note, and not on the original account. So, also, if the new promise be founded on an additional consideration, or take in other matters than those which related to the original contract, and be binding on the original promisor, the remedy would seem to be on the substituted contract.2 But where there is no new consideration, and the new promise is not the result of a compromise or settlement of a disputed claim, or not a new arrangement of various claims, the taking of a promissory note in payment of a debt would only operate at best as a temporary suspension of the debt. So, also, the acceptance of an order on a third person agreed to by such person, would only temporarily suspend the right to recover on the original claim, unless it were accepted in full satisfaction, the party accepting it taking the risk.3 Where, upon the taking of such order or promissory note, a receipt is given in full for the original claim, it would be strong evidence that the promupon the substituted contract. And in the present case, as it is obvious to us that the plaintiffs agreed to accept the note, and the defendant promised to pay the costs in full satisfaction and in the place of the former liability, the defendant remained liable only upon the new contract.